Matter of Isenhour

400 S.E.2d 71 (1991) 101 N.C. App. 550

In the Matter of Melinda ISENHOUR and Brandy Isenhour, Minor Children.

No. 9017DC594.

Court of Appeals of North Carolina.

February 5, 1991.

Phyllis P. Jones, Rockingham County Dept. of Social Services, Reidsville, for petitioner-appellee Rockingham County Dept. of Social Services.

Maddrey & Medlin by Thomas E. Medlin, Jr., Eden, for respondent-appellant Lucy Isenhour.

WELLS, Judge.

Respondent brings forward two assignments of error, contending that the evidence was insufficient to support the court's findings of fact and conclusions of law, and that the court's order is not in the best interests of the children. We affirm.

Though it is unclear from the record to which findings or conclusions respondent objects, she refers to findings four, five and six in her brief:

4. Since this matter was originally heard in Iredell County, respondent has exhibited a long history of failure to cooperate with the Iredell County Department of Social Services and the Rockingham County Department of Social Services. She has made threats to social workers in both counties and exhibited violent acts during visits with her children and visits by social workers.

5. ... Dr. Kim was not aware of any of the violent threats and/or failures to cooperate with the various Departments of Social Services or any of respondent's failure[s] to obey court orders and repeated violations of the terms and conditions of previous visitation orders including her absconding with the children for over a week in April of 1988.

6. The Iredell County Department of Social Services and the Rockingham County Department of Social Services have made repeated efforts to counsel with and work with the respondent in attempts to reunite her with her minor children. Respondent has failed to respond to the repeated efforts of both departments to affect a gradual reunification of the respondent with her minor children.

Respondent contends that these findings are based at least in part on matters present in the file which were not offered into evidence, and that the court erred by either not reviewing the file at the hearing or by not notifying her that it had done so and that it would take judicial notice of the file's contents. We find clear evidence in the record that the trial court did make it plain that it had reviewed the file and was considering the history of the case in conducting the hearing. Neither party was required to offer the file into evidence. A trial court may take judicial notice of earlier proceedings in the same cause. Matter of Byrd, 72 N.C.App. 277, 324 S.E.2d 273 (1985). Respondent also contends that the court erred in basing these findings on evidence that was not "substantive" or was hearsay. Respondent failed to raise these objections at trial, however, and must be considered to have waived them. Matter of Brenner, 83 N.C. App. 242, 350 S.E.2d 140 (1986).

Findings of fact are conclusive if supported by any competent evidence. Id. We have reviewed the record and find no evidence of threats made by respondent to Rockingham County Department of Social Services' workers. The record also reveals that there has been no plan to reunite the minor children with their mother since 1987, with Department of Social Services recommending that legal custody be granted to Brown with respondent maintaining visitation privileges. Respondent has not demonstrated any prejudice from these misstated findings, however. She contends in her second assignment of error that the court's order is contrary to the children's best interests, but we find that the court's properly stated findings adequately support its conclusion of law and order. Trial courts are granted broad discretion in matters involving custody. Glesner v. Dembrosky, 73 N.C.App. 594, 327 S.E.2d 60 (1985). N.C.Gen.Stat. § 7A-657 contemplates that a child may be returned to the parent from whom custody was taken if the trial court finds sufficient facts to show that the child "will receive proper care and supervision" from the parent, and such placement is deemed in the best interest of the child. Matter of Shue, 311 N.C. 586, 319 S.E.2d 567 (1984). We cannot say that the trial court abused its discretion in maintaining the current custody arrangements before it, given the violent and uncooperative history of the respondent, the relative recency of respondent's compliance with the court's orders, and the children's stated desires to remain with their father. The trial court's order is therefore

Affirmed.

HEDRICK, C.J., and ORR, J., concur.